Today, women make up half of the workforce and an increasing number of them are choosing to continue working during pregnancy and shortly after childbirth. It is important that pregnant women are given the opportunity to support their families without compromising their own health or the health of their baby. The government has recognized this need by implementing the Pregnant Workers Fairness Act (“PWFA”) on June 27, 2023.
Prior to the introduction of the PWFA, the Pregnancy Discrimination Act (“PDA”) (which amended Title VII of the Civil Rights Act of 1964) and the Americans with Disabilities Act (“ADA”) were the only federal legal provisions that protected pregnant employees. These laws prohibit employers from treating pregnant women differently or discriminating against them for disabilities commonly attributed to pregnancy. However, the existing laws were insufficient to address all issues related to pregnancy, particularly those involving physical job functions. The PWFA fills in these gaps by ensuring employers provide reasonable accommodations for pregnant employees, so they are not forced to take unpaid or paid leave when a reasonable accommodation could be provided.
What does the PWFA cover?
Under the PWFA, employers that have 15 or more employees are obligated to provide reasonable accommodations to workers with known limitations related to pregnancy, childbirth, or related medical conditions. This requirement applies to all employees who encounter any obstacle, regardless of its size, significance, or frequency, which hinders their ability to perform their duties due to health or pregnancy-related reasons. The PWFA is meant to cover all types of pregnancies, including those that are uncomplicated and healthy. It's important to note that any limitations must be communicated to the employer by the employee or their representative, like a medical professional. Employers are only exempt if the accommodation poses an undue hardship.
Reasonable accommodations vs. undue hardships.
The Equal Employment Opportunity Commission (EEOC) defines "reasonable accommodations" as changes to the work environment or how work is done. There are four accommodations that the EEOC presumes to be reasonable in virtually all cases:
1) Allowing an employee to carry water and drink, as needed, in the employee’s work area,
2) Allowing additional bathroom breaks,
3) Allowing an employee whose work requires standing to sit,
4) Allowing an employee to take breaks, as needed, to eat and drink.
If you are pregnant and your employer denies any of these four accommodations, please contact an attorney right away. Additional accommodations under the PWFA may include modifying work schedules, providing temporary job transfers to less physically demanding positions, modifying necessary work equipment, and allowing intermittent leave for doctor appointments.
Under the PWFA, an employer bears the burden of establishing undue hardship. Undue hardship refers to any accommodation that would be unduly costly, extensive, substantial, or disruptive, or that would fundamentally alter the nature or operation of the business. This analysis is highly fact-specific and depends on the nature, size, and operating cost of an employer. It is best to seek advice from an attorney if your employer fails to accommodate based on this defense.
Who’s entitled to an accommodation?
The PWFA has adopted the requirement from the ADA, providing the employee must be "qualified." This means that the employee must be capable of performing the "essential functions" of the job, with or without an accommodation. However, there is an important distinction between the PWFA and the ADA. The PWFA states that an employee can still be considered "qualified" even if they are temporarily unable to perform certain important functions. This distinction recognizes that most limitations related to pregnancy and childbirth are usually temporary.
What to do if you’re pregnant?
1) Understand your rights. If you are pregnant and your employer has 15 or more employees, you are protected under the PWFA. This means you have the right to ask for a reasonable accommodation at work that can help you maintain your health and/or your baby's health. If you think you are being treated unfairly because of your pregnancy, get in touch with an attorney immediately.
2) Disclose your limitation. An employer cannot provide a reasonable accommodation unless the employee's limitations are properly disclosed. Make sure to disclose your limitations and potential accommodations either by yourself or through your health provider. It is essential that your medical provider is familiar with the job's crucial functions so that they can request an appropriate accommodation.
3) Familiarize yourself with the law. It is possible that your employer may ask you to provide additional medical documentation to support your accommodation request. This request has been approved by courts in situations where the limitation and need for accommodation are not clearly obvious. However, it is important to remember that documentation is not required for four specific accommodations: access to water and drinking as needed, additional restroom breaks, sitting or standing as necessary, and breaks to eat and drink. Additionally, courts assume that an accommodation request related to lactation or pumping is reasonable. If your employer denies any of the above-mentioned, contact an attorney right away.
Robinson Law Offices can help.
Robinson Law Offices passionately advocates for all women who have been discriminated against due to pregnancy, childbirth, or related medical conditions. If you are pregnant and feel your employer has failed to provide a reasonable accommodation under the law, contact Robinson Law Offices to speak with an attorney right away.